Mohamed Lemqadem v. Homewood Suites by Hilton, 2015 HRTO 582

Human Rights Tribunal of Ontario

Between:

Mohamed Lemqadem Applicant

-and-

Homewood Suites by Hilton Respondent

Decision

Adjudicator: Maureen Doyle Date: May 6, 2015 Citation: 2015 HRTO 582 Indexed as: Lemqadem v. Homewood Suites by Hilton

Appearances

Mohamed Lemqadem, Applicant Self-represented

Homewood Suites by Hilton, Respondent Dianne Jozefacki, Counsel

Introduction

1This Application alleges discrimination with respect to accommodation and services because of race, colour, place of origin, ethnic origin, creed, receipt of social assistance and also alleges reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2In a Case Assessment Direction dated October 30, 2014, the Tribunal directed that a summary hearing be convened to determine whether this Application should be dismissed as having no reasonable prospect of success. It directed that the applicant would be required to point to evidence he would rely upon to establish a link between the respondent's alleged actions and the Code.

3A summary hearing was convened and all parties participated.

4For the reasons which follow, this Application is dismissed as having no reasonable prospect of success.

Relevant provisions of the Code

5The Code provides as follows:

Services

1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability. R.S.O. 1990, c. H.19, s. 1; 1999, c. 6, s. 28 (1); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (1); 2012, c. 7, s. 1.

Accommodation

2. (1) Every person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status, disability or the receipt of public assistance. R.S.O. 1990, c. H.19, s. 2 (1); 1999, c. 6, s. 28 (2); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (2); 2012, c. 7, s. 2 (1).

Reprisals

8. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing. R.S.O. 1990, c. H.19, s. 8.

Summary Hearings

6In a summary hearing, the issue is whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or a part thereof will succeed. As outlined in Rule 19A of the Tribunal's Rules of Procedure:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

7In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 and 9, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

Application to the Facts

8The Halton Region Emergency Shelter program (the "Region") has a contract with the respondent hotel whereby it pays directly for the cost of accommodation for authorized periods of time for eligible individuals. The Region provided the applicant with emergency shelter for himself and his family at the premises of the respondent pursuant to this arrangement for a period of time ending August 3, 2013. For hotel accommodation after August 3, 2013, if he remained at the premises of the respondent, the applicant was responsible for the continuing costs of accommodation there.

9The applicant indicates that as of August 3, 2013, he had not found alternative accommodation, and so he and his family remained at the premises of the respondent for a further period. They ultimately left their accommodation at the respondent's premises on August 27, 2013. He states that he had intended for them to stay until September 1, 2013, but that they left due to the actions of the respondent.

10The applicant submits that he was discriminated against because for a period of time he stayed at the respondent hotel under the auspices of the Region's program, because he has an accent, and because his first name is Mohamed, indicating his creed.

11The applicant alleges that he made some payments to the hotel in cash and using a friend's credit card, on August 13 and 20, 2013. He alleges that around the 25th or 26th of August, 2013, a manager of the hotel advised him that he had to pay the amount owing or leave. He alleges that she told him that guests were required to settle their account with the hotel when it reached $1,000, but he states that his was only $941.16 at the time. He alleges that she told him that if he did not pay the amount owing, the hotel would "kick him out" or she would call the police. He asserts that he had intended to pay the bill on September 1, 2013, but that instead he left on August 27, 2013. He alleges that the Region was not required to pay its bills when the amount owing reached $1,000. He alleges that this was discriminatory treatment. He alleges that he called the police regarding the manager's behaviour to him.

12The applicant also alleges that he sought to take advantage of a discount offered to individuals who made a reservation for two nights, a 50% discount on the second night, but that personnel at the respondent hotel hid the brochures rather than let him see them. He alleges that he felt they avoided him after his inquiry. He alleges that this too was for discriminatory reasons. There is no dispute that he was given a discounted rate for the entire duration of the stay from August 3 to 27, 2013.

13The applicant further alleges that the manager of the hotel told him in front of other guests that he had to pay his bill or be kicked out, and he asserts that this too was discrimination. He asserts that he found the treatment he received to be humiliating.

14He alleges that another employee of the respondent hotel approached him in the dining room one morning, confirming that he was checking out that day. He asserts that he did not feel that he was being treated with respect and he asserts that this was also for discriminatory reasons because he had previously been there under the Region's program.

15Additionally, he alleges that at one point during his stay at the respondent hotel, he asked for a change of room, due to problems with the plumbing, but that he did not receive a new room assignment until after he complained to the hotel company's head office. He alleges that prior to that, the management personnel at the hotel made excuses and told lies to him about the availability of other rooms. He alleges that after his complaint to head office, the management personnel treated him nicely when they gave him a new room. He alleges that this too was due to discrimination.

16Finally, he alleges that when he left without paying his bill on August 27, 2013, and another representative of the respondent hotel contacted him in September, 2013 for payment, the representative provided him with a further discount on the amount owing and he asserts that this was a "shrewd" way to address the fact that he had not been given the brochure regarding the discount.

17The respondent submits that the Application should be dismissed as having no reasonable prospect of success. In respect of the allegations regarding the demand for payment of the hotel bill, the respondent submits that the applicant has not indicated what evidence he would rely on to establish that he was treated differently from any other guest who had not paid their hotel bill. In addition to disputing the factual basis of some of the applicant's allegations, the respondent notes that the Tribunal does not have the jurisdiction to address matters of unfairness or perceived unfairness and submits that the applicant has made bald assertions of discrimination but has not pointed to evidence upon which he could rely to establish a breach of the Code. Further, with respect to the allegation of reprisal, the respondent notes that the applicant has not even asserted any attempt to enforce a right under the Code. The respondent also cites Anderson v. Stone Willow Inn, 2013 HRTO 979, and submits that a stay at a hotel falls within the meaning of services, not accommodation. Accordingly, the applicant's allegation that he was discriminated against on the basis of receipt of public assistance, does not fall within the Tribunal's jurisdiction to consider.

Decision

18In explaining how he feels the respondent has violated the Code, the applicant states that because he had initially been a guest at the hotel under the auspices of the Region's program, he feels that he was not treated with respect and he feels that he was discriminated against by having to pay his bill more frequently than the Region would have been required to pay its bill. He also asserts that he is Arab, and that his name is an indication of his creed and that these were also reasons why the respondent discriminated against him. He alleges that these factors have resulted in him being treated differently from other guests at the hotel.

19The power of the Tribunal is limited to dealing with applications alleging a violation of the Code, which prohibits discrimination on specific grounds. It does not have the power to deal with all claims of unfairness or all disputes between parties.

20The CAD issued in this matter indicated clearly that at the summary hearing the applicant was to explain how he can prove, on a balance of probabilities, that he experienced discrimination on the grounds cited, and the evidence he would use to establish his allegations. In the course of the summary hearing, the applicant was given the opportunity to provide this explanation but was unable to do so.

21Even if I were to find that this applicant's hotel stay was "accommodation" as opposed to "service" (and to be clear, I make no such finding), such that the ground of receipt of social assistance would apply, the applicant has made an allegation of discriminatory treatment, but has not provided an explanation of how he will be able to connect the events at the respondent hotel to his receipt of social assistance or to the cited grounds protected in both "accommodation" and "service", namely race, colour, place of origin, ethnic origin, or creed. The applicant has also not explained how he would establish reprisal contrary to the Code.

22With respect to his allegations relating to the respondent hotel's actions in demanding payment of his hotel bill, he has not pointed to any evidence to indicate that he was treated any differently from other guests who had outstanding bills. At most, he has indicated that he has evidence that he was treated differently than the corporate client, the Region, but he has not indicated what evidence he would use to establish his allegation that the hotel required payment from him when his invoice had reached $941.16, or threatened to "kick him out", due to the grounds cited. Further, he has not indicated what evidence he would use to establish his allegation that the management had a discussion with him regarding his invoice in front of other clients due to the grounds cited. He has not indicated what evidence he would use to establish that personnel of the respondent confirmed with him that it was his last day at the hotel when he was in the dining room, due to the grounds cited. He has not indicated what evidence he would use to establish that the hotel personnel avoided him or removed brochures regarding a discount for individuals making reservations for two nights when he indicated he was looking for a further discount, due to the grounds cited. The applicant has not indicated what evidence he would rely on to establish that there was a delay in providing him with a different room assignment when he reported problems with the plumbing, due to the grounds cited. Finally, though he asserts that he complained to management at the respondent, he does not indicate that he ever attempted to enforce his rights under the Code and accordingly has not indicated what evidence he would be able to rely upon to establish reprisal contrary to the Code.

23The applicant has made a bald assertion of discrimination and reprisal, but has not indicated what evidence he would be able to call to indicate a link between the respondent's alleged actions and reprisal or the other grounds cited in the Application.

24The applicant must be able to show that the respondent has treated him differently as compared to others based on his race, colour, place of origin, ethnic origin, creed, or receipt of social assistance, or that he claimed or enforced his rights under the Code for his Application to be successful. He has not, however, been able to identify any evidence which would, if proven, establish a connection between the events at the respondent hotel and his race, colour, place of origin, ethnic origin, creed, or receipt of social assistance, or an attempt to claim or enforce his rights under the Code. Without such evidence, his Application cannot succeed.

25I find that there is no reasonable prospect that the Application will succeed and it is dismissed.